On 11 February 2010, the world commemorated 20 years of freedom for the first democratically elected president, Nelson Mandela.

But Madiba's own freedom has coincided with the apparent idea that his image is also free to be used (and abused) for personal gain. A prime example was the controversy surrounding a book by the Congolese president, Denis Sassou Nguesso that contained a foreword supposedly written by Nelson Mandela. The Nelson Mandela Foundation, who is the guardian of Madiba's name and image, confirmed that no such foreword had been provided, and that that book in fact used a speech attributed to Mr Mandela and presented more than 10 years ago at a dinner in Cape Town! Even South Africa's own starlet Charlize Theron auctioned off a meeting with the former president in a charity event, without actually having arranged a meeting with him.

South Africa does not have specific protection for celebrity images per se, but there are ways in which a celebrity can protect his or her image by means of existing legislation:

The Trade Marks Act

A celebrity can register his or her image or name as a trade mark. 'Nelson Mandela' is a registered trade mark in the name of the Nelson Mandela Foundation for diverse goods such as jewellery, leather goods and textiles. The famous 'Madiba' term of endearment could also be regarded as a well-known trade mark and may enjoy protection as a trade mark, even though it has not been registered.

Famous examples of celebrities in the sporting field that have registered their names as trade marks include rugby stars Naas Botha and James Small.

The registration of a trade mark forms the basis for infringement proceedings where such trade marks are used without the owner's consent.

The Copyright Act

Celebrity images, when classified within the definition (work) as defined in the Copyright Act, includes works such as photographs, which can be protected under the Copyright Act.

Copyright of a photograph would vest in the person who has commissioned the photograph or composed it. An example of the enforcement of image rights came to the fore in the interdict sought by several Springbok rugby players against the distribution of the notorious Kamp Staaldraad DVD. The players successfully argued that, firstly, their dignity and right to privacy would be infringed, but also secondly, that the copyright of the material was proprietary to SA Rugby (Pty) Limited.

The Nelson Mandela Foundation could use these statutory measures to protect to image of arguably one of the most important figures in South African history.

Written by: Eben van Wyk, Director, and Rico Burnett, Associate, Intellectual Property, Cliffe Dekker Hofmeyr